Madhya Pradesh High Court
M/S Abhishek Enterprises vs National Thermal Power Corporation Ltd on 1 December, 2020
Equivalent citations: AIRONLINE 2020 MP 1497
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WP-16716-2020
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.16716/2020
(M/S Abhishek Enterprises vs National Thermal Power Corporation Ltd & Another)
Jabalpur, Dated 01.12.2020
Shri Prakash Upadhyay, learned counsel for the petitioner.
Rejection of his technical bid has led the petitioner file this
petition under Article 226 of the Constitution.
2. The representation preferred by the petitioner was in
furtherance to the liberty granted to the petitioner by order dated
27.08.2020 passed in Writ Petition No.11495/2020, wherein the
petitioner has raised a grievance against non-consideration of his
bid.
3. The bid by the petitioner was in furtherance to Notice
Inviting Tender for completing balance work of dry ash extraction
system of VSTPP, STG-IV (2X500 MW) Fabrication and Erection
of SILOs and allied structural works at the risk and cost of M/s
Tecpro System Ltd, in which the petitioner along with other two
firms participated. One of the conditions in the said Tender was
that a preference would be given to make in India and a purchase
preference to local supplier will be granted and the detailed
procedure as enumerated in Clause 4.1 of Annexure-II of Section
III of Bid Data Sheet (BDS).
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WP-16716-2020
4. Clause 231 of Section III of the Bid Data Sheet specifically
provides that a declaration of local content is required to be
submitted and in case it is not submitted, the bidder would not be
entitled to be considered as 'local supplier'.
5. Evidently, the petitioner did not fulfill the essential condition
as stipulated in Clause 23 of Section III of Bid Data Sheet. Non-
consideration of his bid led him to file petition seeking direction to
the respondents to make an enquiry on the claim of the petitioner
after giving due opportunity of hearing to the petitioner. The petition was disposed of on 27.08.2020 with a direction to the respondents to consider and decide the representation filed by the petitioner after affording an opportunity of hearing.
6. The said representation came to be decided by impugned communication dated 05.09.2020 which is in the following terms :
SSC-NR VINDHYACHAL C&M Department Ref. SSC-VSR/C&M/Contracts Date : 05.09.2020 To, M/s Abhishek Enterprises LD-15, PADUMNAGAR BHILAI Chhattishgarh - 490021 1 Declaration on Local Content : Declaration regarding local content as per the ATTACHMENT- 23 of SECTION_VIII_FORMS_AND_PROCEDURES_BOOK_1_OF_2, for granting of purchase preference.
In case a bidder does not submit the aforesaid declaration or no value is indicated by the bidder or statement/any declaration like 'later', 'to be furnished later', 'NA' etc. are indicated by the bidder, then the bidder shall not be considered as a local supplier and shall not be eligible for any purchase preference. No further claim in this regard shall be entertained by the Employer.
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WP-16716-2020
Sub: Consideration and disposal of
representation/submissions of M/s Abhishek Enterprises in compliance of Order dated 27.08.2020 passed by Hon'ble High Court at Jabalpur in W.P. No.11459/2020 M/s Abhishek Enterprises Vs. National Thermal Power Ltd-REG.
Ref: NIT No.9900201971 for Balance works of Dry Ash Extraction System of VSTPP, Stg-IV (2X500 MW)
- Fabrication and Erection of SILOs & allied Structural Works.
Dear Sir, This is in compliance of Order dated 27.08.2020 passed by Hon'ble High Court at Jabalpur in the subject mentioned case. The Hon'ble High Court disposed of the petition with a direction to the respondent to consider and decide the representation filed by the petitioner after affording an opportunity of hearing to the petitioner or his representative through video conferencing.
In view of above, NTPC vide email dated 30.08.2020 gave you an opportunity of hearing through Microsoft team on 31.08.2020 at 16:00 Hrs.
On 31.08.2020, NTPC representative heard your submission through MS team and requested that if you have any other representation/submission the same can be submitted through email.
You have submitted your further representation/submission vide email dated 01.09.2020. Your representation and submission vide mail dated 01.09.2020 has been examined and considered. NTPC had floated the tender for Balance works of Dry Ash Extraction System of VSTPP, Stg-IV (2X500 MW)
- Fabrication and Erection of SILOs & allied Structural Works. As per clause no.23 of Bid data Sheet, Section- III of Bid document:
4WP-16716-2020 "In case a bidder does not submit the aforesaid declaration or no value is indicated by the Bidder or statement/any declaration like 'later', 'to be furnished later', 'NA' etc. are indicated by the bidder against value/percentage of local content, then the bidder shall not be considered as a local supplier and shall not be eligible for any purchase preference." You have not submitted the Attachment-23 of Section VIII, Forms and Procedure Book (sic) granting purchase preference. Therefore, you were not eligible for any purchase preference as Local Supplier. On your request, NTPC C&M team has again checked your bid and found that Minimum Local Content (Attachment-23) for obtaining purchase preference is not available in your bid.
Your bid is digitally signed, encrypted on Government e-portal, which is decrypted during downloading and same is available on Gepnic portal and the same may be verified by you by downloading your bid through NTPC Gepnic portal.
In response to your submission vide email dated 01.09.2020, it is to be mentioned here that:
1) After price bid opening, online tendering system will show the prices of all bidders and their positions, however case shall be awarded after loading all evaluation parameters as per provisions of bidding document. Hence, as per clause no.4(ii) of Annexure-
II of Bid data sheet Section_III_Bid_Data_Sheet:
"If L1 bid is not from a local supplier, the lowest evaluated bidder among the local suppliers, will be invited to match the lowest evaluated bid (L1) price subject to local supplier's evaluated bid price falling within the margin of purchase preference and the contract shall be awarded to such local supplier subject to matching the lowest evaluated bid (L1) price."5
WP-16716-2020 Hence, tender shall be evaluated as per the provision of the Bidding document.
2) The price bids were opened in the subject case as per the provisions of the bidding documents. As per clause no.19 of Bid data sheet - Benefit to MSE is not applicable for this tender.
3) Please note that as clause no.23 of Bid data sheet, Section-III of Bid document:
"In case a bidder does not submit the aforesaid declaration then the bidder shall not be considered as a local supplier and shall not be eligible for any purchase preference. Hence, any document submission after bid opening date cannot be considered to evaluation."
4) In the subject tender, clause no.23 of Bid data sheet of bidding document clearly indicates its essentiality for granting purchase preference.
5) The subject tender shall be evaluated as per provisions of bidding document.
The tender shall be evaluated as per the provision of the Tender Conditions. Having considered the representation in question as above and as far as the reasons as brought out above, your request is turned down."
7. Apparently, there is no proof on record that the petitioner submitted the required information as was called for vide Clause 23 of Section III of Bid Data Sheet.
8. The factual aspect having gone into by the Competent Authority on representation preferred by the petitioner and in absence of any document causing perversity in the findings arrived 6 WP-16716-2020 at by the Departmental Authority, we are not inclined to cause any indulgence.
9. Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) (Vijay Kumar Shukla)
Acting Chief Justice Judge
vinod
Digitally signed by VINOD
VISHWAKARMA
Date: 2020.12.03 15:55:30 +05'30'